FEDERAL COURT OF AUSTRALIA

Ogawa v Minister for Immigration and Border Protection [2018] FCA 62

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision of 18 October 2017 to refuse the applicant’s application under the Migration Act 1958 (Cth) for a Partner (Temporary) (Class UK) visa be quashed.

2.    The applicant be released from her present immigration detention forthwith.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    Dr Megumi Ogawa is a citizen of Japan. She has resided in Australia ever since 24 November 1999. Her original entry into Australia was for the purpose of pursuing post-graduate studies in law. In this pursuit she was successful, as evidenced by the conferral on her of the degree of Doctor of Philosophy by the University of Queensland. She is thus entitled to the title, “Doctor” as of right, not merely as a matter of popular usage and courtesy.

2    On 18 October 2017, the Minister for Immigration and Border Protection (at the time, the Honourable Peter Dutton MP), personally decided to refuse Dr Ogawa’s application under the Migration Act 1958 (Cth) (the Act) for a Partner (Temporary) (Class UK) visa. The Minister was empowered by s 501(1) of the Act to make such a decision but it had to be made according to law. He explained his reasons for so doing in Dr Ogawa’s case in a statement of reasons served personally on her by an officer of the Minister’s department on 2 November 2017 along with a letter formally notifying her of the Minister’s decision and its consequences (the notification letter).

3    One of those consequences was that, subject to presently immaterial exceptions, any other extant visa applications by Dr Ogawa were taken to have been refused and any other visas held by her were taken to have been cancelled: s 501F of the Act. Another was that Dr Ogawa thereby became an unlawful non-citizen, amenable to detention pursuant to s 189 of the Act. Dr Ogawa is presently in immigration detention and has been since 2 November 2017. She is liable to deportation pursuant to s 198 of the Act although, pending the determination of her judicial review application, the Minister has not moved to deport her.

4    Dr Ogawa contends that the Minister’s visa refusal decision was attended by a number of jurisdictional errors and therefore unlawful. She has applied for the judicial review of that decision by the Court.

5    Materially, s 501(1) of the Act empowers the Minister to refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the “character test”. The latter is defined by s 501(6) of the Act. By that definition, one way in which a person does not pass the “character test” is that the person has a “substantial criminal record”: s 501(6)(a) of the Act. In turn, “substantial criminal record” is a defined term: s 501(7) of the Act. Regard to that definition discloses that one way in which a person can have a “substantial criminal record” is where “the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”: s 501(7)(d) of the Act.

6    It is the criterion found in s 501(7)(d) of the Act which formed in Dr Ogawa’s case the basis for the Minister’s satisfaction that she had a substantial criminal record. At one stage, it was controversial as to whether there was, in her particular circumstances, ever a foundation for such satisfaction by the Minister.

7    The evidentiary foundation for the Minister’s satisfaction is to be found in part in the transcript of the trial judge’s sentencing remarks and passing of sentence, which formed part of the material before him when he made his decision. That material also included a “National Police Certificate” in respect of Dr Ogawa’s convictions and related sentences.

8    On 19 March 2009, in the Queensland District Court (His Honour Judge Durward SC, sitting with a jury), Dr Ogawa was convicted on the verdict of a jury of two counts of using a carriage service to harass in contravention of s 474.17 of the Criminal Code (Cth) (“the Commonwealth Code”), and two counts of using a carriage service to make a threat to kill in contravention of s 474.15(1) of the Commonwealth Code (“the indictment offences”). The transcript disclosed that the two counts under s 474.17 of the Commonwealth Code involved the appellant’s sending 83 emails during an 18 hour period on 13 and 14 April 2006 to various email addresses at this Court, and making 176 phone calls to registries and chambers of this Court between 13 April and 19 May 2006. It further disclosed that the two charges under s 474.15(1) of the Commonwealth Code involved Dr Ogawa’s making a threat to an officer of this Court, to kill two registrars of this Court with whom she had previously dealt or, as the case may be, was then currently dealing in relation to proceedings instituted by her in the Court.

9    Dr Ogawa was not sentenced in respect of these offences until 27 March 2009. On that date Judge Durward also dealt with Dr Ogawa in respect of a charge of contempt of court, contrary to s 129 of the District Court of Queensland Act 1967 (Qld), which had been made against her as a result of her conduct in the course of the trial proceedings. His Honour convicted her of that charge. He then proceeded to sentence her in respect of both for the contempt of court and for the offences against the Commonwealth Code.

10    As to the Commonwealth Code offences, the National Police Certificate records, “On all charges: 6 months imprisonment”. This statement is at best neutral, if not misleading, as to whether separate terms of imprisonment were imposed in respect of the Commonwealth Code offences. Unfortunately, the material before the Minister did not include a certificate of conviction from the District Court, which would have provided a definitive record of the sentence passed on Dr Ogawa.

11    Given the way the National Police Certificate is cast, analysis of the transcript of the sentence assumed some importance in providing a foundation for the Minister’s satisfaction in respect of the existence of a “substantial criminal record” as defined. That satisfaction was the jurisdictional fact which enlivened an ability to exercise the discretionary power conferred by s 501(1) of the Act. It is, with all due respect to his Honour, possible to understand how, unless, informed by pertinent authority, one reads the entire transcript carefully and as a whole, a doubt might emerge as to whether Dr Ogawa had been sentenced to 2 or more terms of imprisonment, where the total of those terms was 12 months or more.

12    His Honour first sentenced Dr Ogawa in respect of the contempt offence. As to this, he sentenced her to imprisonment for four months, fixing a parole release date of 26 May 2009. His Honour then proceeded to sentence Dr Ogawa in respect of the offences against the Commonwealth Code. As to these, the transcript (Court Book, p 40) discloses that, initially, he stated:

I will make the one sentence in respect of the four counts. You are sentenced with respect to those counts to six months’ imprisonment to commence on 27 May 2009. By order I direct that you be released after having served four months upon you giving a security by recognisance in the sum of $1,000 conditioned that you be of good behaviour for a period of two years.

[Emphasis added]

13    Evidently after hearing and considering submissions in relation to the sentence imposed in respect of the Commonwealth Code offences, his Honour revoked that part of the order he had pronounced which referred to the sentence of imprisonment in respect of those offences and, in lieu thereof, made an order in these terms (Court Book, p 40): “on each charge you are sentenced to six months’ imprisonment to commence on 27 May 2009”. His Honour added (Court Book, p 41): “Each of the sentences of six months’ imprisonment are to be concurrent [sic]”.

14    The transcript also discloses that the sentences in the terms quoted were initially pronounced in the absence of Dr Ogawa. It further discloses that she was later brought into the courtroom and that his Honour then proceeded to pronounce the sentences in her presence, adopting, in respect of the Commonwealth offences, the form as earlier corrected by him. It appears (Court Book, p 43 – reference by Mr Kent of counsel, the Crown Prosecutor to “continual screaming”) that Dr Ogawa screamed throughout this part of the proceedings and that this conduct occasioned the direction, “Please, remove her” by his Honour (Court Book, p 42). It takes no great feat of imagination to appreciate the additional stresses and tension this behaviour by Dr Ogawa must have introduced into the courtroom.

15    If but one term of imprisonment for six months were imposed in respect of the Commonwealth Code offences then neither alone, nor even in conjunction with the contempt sentence, would that equal or exceed 12 months in total. If so, s 501(7)(d) of the Act would not be applicable and there could be no lawful satisfaction that Dr Ogawa had a “substantial criminal record”.

16    By s 4K of the Crimes Act 1914 (Cth) it is provided, materially:

(3)    Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

(4)    If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.

17    Uninstructed by authority and though his Honour did not, in terms, refer to s 4K of the Crimes Act, it is possible to see how his initial sentencing reference to, “I will make the one sentence in respect of the four counts” might have been regarded as an invocation of s 4K. It has, however, been held that the reference to “information, complaint or summons” in s 4K of the Crimes Act does not include a proceeding on indictment: Putland v The Queen (2004) 218 CLR 174 at [46], approving an earlier judgement of the Victorian Court of Appeal, R v Bibaoui [1997] 2 VR 600, where that construction of s 4K was adopted.

18    In accordance with the usual practice, the transcript of the sentence does not record the submissions which were made to Judge Durward after his initial pronouncement of sentence in respect of the Commonwealth Code offences. Having regard to the correction which his Honour made, it is inferentially likely that a submission as to the inapplicability of s 4K of the Crimes Act was made to and accepted by his Honour. Apart from its inapplicability to a proceeding on indictment, each of the Commonwealth offences was not against the same provision of the Commonwealth Code. As they were dealt with on indictment, it was not lawfully possible to impose one term of imprisonment in respect of the four Commonwealth Code offences. Instead, the necessary sentencing approach was to apply Pearce v The Queen (1998) 194 CLR 610 and sentence Dr Ogawa for each offence individually and then determine whether those sentences should be concurrent or cumulative in order to address the totality principle in respect of a course of offending conduct which had yielded separate offences. An application of the totality principle (here, explicitly applied by his Honour) might in practice yield, via concurrent terms of imprisonment, a like length of time spent in prison but in form the sentence would nonetheless comprise separate terms of imprisonment.

19    Reading the transcript of sentence as a whole and with an understanding of how s 4K of the Crimes Act has been construed, it is tolerably clear that a separate term of imprisonment for six months was imposed in respect of each of the offences against the Commonwealth Code with those terms being ordered to be served concurrently. Any doubt that concurrent terms were imposed is resolved in favour of a conclusion that they were by reference to the Queensland Court of Appeal’s judgement in relation to Dr Ogawa’s subsequent appeal: R v Ogawa [2009] QCA 307. A subsequent application by Dr Ogawa for special leave to appeal to the High Court was dismissed by that court: Ogawa v The Queen [2010] HCASL 188. Inferentially, from his reference in his statement of reasons (paragraph 25) to “referred back to the Queensland Court of Appeals [sic]”, the Minister was cogniSant that there had been an earlier appellate challenge by Dr Ogawa to her convictions by the District Court.

20    Given that s 501(7A) of the Act requires that concurrent sentences be aggregated for the purpose of calculating whether a person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more, even having regard to the sentence in respect of the Commonwealth Code offences alone, s 501(7)(d) was applicable to Dr Ogawa. That makes it unnecessary to consider whether the offence of contempt of court contrary to the District Court Act is an offence for the purposes of s 501.

21    The present case does though highlight how the application of s 501(7A) of the Act can operate in a way which is inconsistent with an application of the totality principle in the sentencing of the person concerned and also how amenability of a person to the exercise of the discretion conferred by s 501(1) of the Act may depend on whether a person who has committed multiple, separate offences is dealt with summarily (in which case s 4K of the Crimes Act might be applied in the circumstances of a particular case to impose one term of imprisonment) or on indictment (in which case s 4K of the Crimes Act is inapplicable). It is, with respect, difficult to see the logic in this parliamentary preference for sentencing form over substance in respect of a jurisdictional fact satisfaction as to the existence of which empowers the making of a discretionary value judgement the ultimate legal consequence of which may be the deportation of a person from Australia.

22    Dr Ogawa did not press a submission that there was no foundation for the Minister’s satisfaction that she had a “substantial criminal record”. For the reasons just given, she was correct in her decision not to leave this subject controversial.

23    The jurisdiction which Dr Ogawa has invoked is conferred on the Court by s 476A(1)(c) of the Act. That the conduct which has placed Dr Ogawa in jeopardy of deportation has its origins in earlier dealings by her with officers of the same Court in which she now seeks to have the Minister’s decision quashed might perhaps be thought by some to be not without irony. Ironic though that may be, it is emphatically the case that Dr Ogawa is just as entitled to an exercise of judicial power without fear, favour or affection as any other person who invokes a jurisdiction consigned to this Court. In R v Metropolitan Police Commissioner, ex parte Blackburn (No. 2) [1968] 2 QB 150 at 155 Lord Denning MR, in referring to the power to deal with persons for contempt of court, observed, “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations.”

24    That same sentiment must attend the present exercise of the judicial review jurisdiction in the circumstances of this case. It would not just be a perversion but a violation of the judicial oath otherwise to approach the determination of Dr Ogawa’s application. The justice system long ago ran its course in relation to the penalisation of her earlier conduct. That said, the jurisdiction now invoked is concerned only with the legality of the Minister’s decision, not with its merits. The purpose of the discretionary power conferred on the Minister by s 501 of the Act is protective, not punitive: Falzon v Minister for Immigration and Border Protection [2018] HCA 2. Subject to observance of the principle of legality, the making of a discretionary value judgement pursuant to s 501 in relation to that purpose is for the Minister and the Minister alone, not for this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–37 per Brennan J.

25    Dr Ogawa appeared on her own behalf. She was astute to recognise the nature and limits of the jurisdiction which she had invoked and, with respect, discriminating in identifying the jurisdictional errors which she alleged attended the Minister’s decision. I have already mentioned the concession which she made as to there being a foundation for the Minister’s satisfaction that she had a “substantial criminal record” as defined. Further, her invocation of this Court’s original jurisdiction, rather than the alternative of the constitutionally entrenched, original jurisdiction possessed by the High Court pursuant to s 75(v) of the Constitution necessarily entailed an understanding by her that the nature of her anterior criminal conduct provided no foundation for any meritorious claim of necessary institutional bias such that this Court could never be an appropriate forum for the judicial review of the Minister’s decision.

26    Given her earlier conduct in a court proceeding, it is desirable to record that, notwithstanding the jeopardy in which she found herself, as well as the limitations on her freedom imposed by her immigration detention and the related emotional demands occasioned by each, Dr Ogawa conducted herself in court with courtesy and dignity. That was so even when, at the conclusion of oral submissions, I informed her, in response to an inquiry she made, that, in the exercise of the jurisdiction judicially to review the Minister’s decision, I did not consider I had any general power to order her release from detention, pending the determination of her application. In my view, there is incidental power to ensure that the circumstances of a particular detention do not occasion an interference with access to and the exercise of Commonwealth judicial power but that is the limit of that incidental power.

27    Though she is fluent in English, that it is not her first language did, I thought, at times occasion Dr Ogawa a slight degree of frustration in the course of oral submissions but those submissions and her written submissions were well-focussed, articulate and concise. It is fair to say that the precise grounds of review underwent some revision by Dr Ogawa with the benefit of interchange with the bench in the course of her oral submissions. That revision necessitated that both she and the Minister be afforded an opportunity, after the close of oral submissions, to file supplementary written submissions. I turn now to consider those grounds. For that purpose, I have adopted the headings used by Dr Ogawa in her written submissions.

Ground 1 - The Respondent did not have jurisdiction to make the decision under s 501(1) of the Act or otherwise the decision purportedly made by the Respondent was not authorised by the Act to be made.

28    As developed in submissions, this ground has its origins in and is premised upon a statement in the notification letter that the basis for the Minister’s conclusion that Dr Ogawa did not pass the character test was s 501(6)(d) of the Act, which provides:

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community.

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;

29    It is true that the Minister’s anterior letter giving notice of an intention to refuse her visa application and an opportunity to make related submissions (anterior letter) made no reference to s 501(6)(d) of the Act. But regard to the Minister’s statement of reasons makes it pellucid that s 501(6)(d) did not supply the ground upon which he was satisfied that Dr Ogawa did not pass the character test. It is patent that that ground was supplied only by s 501(6)(a). And, by the anterior letter, Dr Ogawa was given notice of this possibility in advance of the making of the Minister’s decision on that basis. The reference to s 501(6)(d) in the notification letter is an administrative error.

30    The effect of s 501G is, materially, that, after making a refusal decision, the Minister must give the person concerned a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision.

31    The administrative error in the notification letter does, in my view, evidence a transgression of s 501G(1)(d) of the Act in that the provision under which the decision was made and the effect of that provision have not been correctly specified. That does not reflect well on the quality of public administration in the department for which the Minister was responsible but the error does not, in my view, render the Minister’s refusal decision itself invalid. The evident purpose of this part of s 501G is to extend to a person a benefit which the common law (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656) does not namely, a right to the provision of a statement of reasons, including the identification of the statutory foundation for the decision, rather than a bare statement of the terms of the decision. It is no part of the evident purpose of s 501G to vitiate the anterior decision in the event of a deficiency attending its communication in compliance with s 501G: Re Minister for Immigration and Indigenous Affairs;: Ex parte Palme (2003)216 CLR 212 at [48]. Any doubt which might otherwise exist about that conclusion is put to rest by s 501G(4) of the Act, which expressly provides, “A failure to comply with this section in relation to a decision does not affect the validity of the decision.” A failure to comply with s 501G might provide a foundation for a mandamus requiring compliance or the granting of an extension of time within which to apply for judicial review of the Minister’s decision but not for the quashing of that decision. As it is the specification in the Minister’s statement of reasons of the provision under which the decision was actually made would make any such application pointless.

32    Further, as the foundation for the Minister’s decision was never found in s 501(6)(d) of the Act, there could be no denial of procedural fairness to Dr Ogawa grounded in a failure to make reference in the anterior letter to the prospect of reliance on that provision as a basis for satisfaction as to a failure to pass the character test.

33    For these reasons, there is no merit in ground 1.

Ground 2 - The Respondent failed to accord with procedural fairness when considering the 'Risk to the Australian Community' .

34    Dr Ogawa’s related submission is directed to an alleged failure on the part of the Minister in making his decision to advert to two items of information, contrary to s 54 and s 55 of the Act. These sections provide:

54.    Minister must have regard to all information in application

(1)    The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)    For the purposes of subsection (1), information is in an application if the information is:

(a)set out in the application; or

(b)in a document attached to the application when it is made; or

(c)given under section 55.

(3)    Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55.    Further information may be given

(1)    Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)     Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

35    Sections 54 and 55 of the Act are found in Div 3, Subdiv AB--Code of procedure for dealing fairly, efficiently and quickly with visa applications of the Act. Within s 501, s 501(5) operates only to exclude this code of procedure from application to decisions under s 501(3) and s 501(3A). Sections 54 and 55 are applicable to the making of a decision under s 501(1) of the Act.

36    The two items of information said not to have been considered by the Minister are a certificate of completion of a course, “Emotional Intelligence (Includes Simulation) (Court Book p. 183); and a letter by Dr Ogawa’s psychiatrist, Dr Mark Whittington, dated 20 September 2017 (Court Book p. 662). These two items of information were furnished by Dr Ogawa to the Minister after she made the visa application but before the Minister made his decision. Section 55 of the Act was therefore applicable to each of them. Further, because, by s 54(2)(c) of the Act, information given under s 55 is taken to be information “in an application”, the obligation separately found in s 54(1) of the Act to “have regard to all of the information in the application” was also applicable to each of these two items of information. Perhaps oddly, unlike that found in s 55(1), that obligation is not expressly qualified by the adjective “relevant”. In this case, that is a distinction without a difference because the Minister expressly regarded the subject of Dr Ogawa’s risk of engaging in like conduct to that which had yielded her “substantial criminal record” as relevant to the exercise of his discretion. Each of the items of information was relevant to the consideration of such a risk. However, subject to reasonableness, the weight to give that information was a matter for the Minister.

37    Even though the Minister has expressly chosen to consider the subject of risk in the exercise of his discretion, and he is hardly to be criticised for that, something further should be said on that subject. In Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [66] (Moana), Rangiah J (with whom North J agreed) observed in respect of s 501(2):

I consider that in the exercise of the discretion under s 501(2), the Minister is required to consider whether there is a risk of harm to the Australian community posed by the continued presence of the visa holder in Australia and to take into account any such risk.

38    The other judge who constituted the Full Court in Moana, Jessup J, did not (at [9] – [10]) share this view. Since then and as was observed in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 at [50] and [51], differing views have been expressed in other cases in the Full Court as to whether or not there is any requirement of the kind described by Rangiah J in Moana. That difference has been referred to as an “unresolved tension” between the majority view in Moana and observations earlier made by Keifel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [72] & [74]: see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [36]. The Minister made a formal submission that the observations made in Huynh were the correct view.

39    The observations made by Rangiah J with the agreement of North J in Moana in respect of s 501(2) are just as applicable to s 501(1). So, too, is the differing view of Jessup J, grounded as it was in an absence of any express reference to risk in s 501(2). There is also no express such reference in s 501(1). The power to exercise the visa refusal discretion conferred by s 501(1) is enlivened by a failure to satisfy the Minister that the person passes the character test. Once enlivened, it is a textual truism that there is no consideration made expressly relevant by s 501(1).

40    When one has regard to the various bases upon which a person can fail to satisfy the Minister that he or she passes the character test and to the legal consequences of a visa refusal decision, the purpose of the conferral of the discretionary power found in s 501(1) must be the protection of the Australian community. In the short term, that protection is achieved by the amenability of the person concerned to immigration detention following a visa refusal decision. Thereafter, it is achieved by the amenability of the person to deportation from Australia.

41    Once that purpose is appreciated, a unifying theme emerges in relation to the various bases upon which a person can fail to satisfy the Minister that he or she passes the character test. Each is concerned with a risk presented by that person to the Australian community. More particularly, in relation to a person with a “substantial criminal record” as defined, an assessment of risk necessarily entails a consideration of the offences concerned and of a risk that the offending conduct might be repeated by the person. In relation to such a person, the risk assessment is necessarily personal. Further, given that a person’s failure to satisfy the Minister that they pass the character test does not automatically oblige the refusal of the visa applied for and when one has regard to the legal consequences of a refusal decision, it must, in my view, follow by implication that the exercise of the discretion found in s 501(1) necessarily entails the making of a value judgement as to whether the identified risk is such that, for the protection of the Australian community, the person concerned should be visited with the legal consequences of a visa refusal decision. Thus, in my view, the Minister’s adoption of an assessment of risk as a relevant consideration was not just a matter of voluntary choice but fulfilled an obligation to consider that subject, because it was a relevant consideration in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Peko-Wallsend). To the extent that, sitting in the original jurisdiction, I have any choice, given the existence of differing views in the Full Court, I prefer, for the reasons just given, to follow those expressed by Rangiah J in Moana.

42    The text of each of s 54(1) and s 55(1) of the Act is cast in apparently imperative terms in relation to information given by a visa applicant, obliging the Minister to “have regard” to that information. That the section imposes a requirement on the Minister has been confirmed by the High Court: Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 at [26]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [10].

43    In R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 Dixon J described statutory provisions conditioning the validity of exercises of decision-making powers as imposing “imperative duties or inviolable limitations or restraints”. To construe the obligation found in either s 54 or s 55 of the Act as entailing an imperative duty such that its violation would visit invalidity on an exercise of the refusal power found in s 501(1) in violation of that obligation necessarily entails consideration of “the justice and convenience of holding that a breach of the duty invalidates an exercise of the decision-making power”: Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [27].

44    At least where the information is relevant, there would be little difficulty, even were there to be no authority terming what is found in these sections a requirement, in holding that an exercise of the power to refuse a visa application conferred by s 501(1) of the Act that is affected by a breach of the duty found in each of s 54(1) and 55(1) to have regard to information given to the Minister is invalid. The disadvantage to and injustice inflicted upon the individual concerned by a failure to have regard to relevant information is obvious. To visit invalidity upon any such decision is to advance the statutory purpose of dealing fairly with a visa application.

45    That is not to say that invalidity, arising from the absence of the express qualification as to relevance in s 54(1) already noted, is to be visited on a decision in which irrelevant information was not considered. That would be an unlikely construction of s 54(1) of the Act, particularly having regard to the assimilation by s 54(2)(c) of information given under s 55 to which I have referred. The more likely construction is that relevance of information is implicit in s 54(1).

46    In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [57] (Singh), Sackville J resolved the potential for unworkability in public administration flowing from the generality of the language in s 54(1) of the Act by holding that it did not require the consideration of all information provided by a person, no matter how marginal its relevance, “as a fundamental element” of the making of the decision. His Honour’s use of that phrase recalled its earlier use by Mason J in a more general discussion of the obligation to take account of relevant considerations in administrative decision-making in R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, at 329. It also formed part of a discussion by Sackville J of the phrase “have regard to”. In my respectful view, it is more in keeping with the later High Court authority to the effect that ss 54 and 55 impose requirements only to visit with invalidity a decision which fails to have regard to relevant information. Consistent with this, is the statement by the Full Court in WAEE v Minister for Immigration and Multicultural Indigenous Affairs (2003) 236 FCR 593 at [46] that it is not necessary for an administrative decision-maker to refer in written reasons to “every piece of evidence and contention made by an applicant”.

47    The question thus becomes, did the Minister fail to have regard to either or each of these items of information?

48    The Minister’s statement of reasons is hardly cursory. It is axiomatic that those reasons must not be construed narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang).

49    In the concluding part of his reasons, the Minister stated (paragraph 45):

I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Act and (2) all other evidence available to me, including information provided by, or on behalf of Dr Ogawa.

50    This statement assumed some importance in the Minister’s submission that, as a matter of fact, there was no substance in Dr Ogawa’s submission in that it evidenced that he had had regard to each of the items of information. But such mere assertions in a statement of reasons are not conclusive. Such an assertion may be inconsistent either with the reasons read as a whole or even with the decision itself: Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180, at 184; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 495 – 496. Dr Ogawa endeavoured to demonstrate this in her submissions.

51    A starting point in Dr Ogawa’s endeavour was a submission that neither of the items of information is, in terms, referred to in the Minister’s reasons. This is true. But it would be inconsistent with Wu Shan Liang to ignore any generic references in the reasons which might, read fairly and in context, be regarded as evidencing that the Minister did have regard to these items of information.

52    As it happens, there are references in the Minister’s reasons which tend in favour of a conclusion that the Minister failed to consider either item of information. Demonstrating this requires greater precision as to the detail found in each of the items of information and of what was otherwise given to the Minister by Dr Ogawa.

53    The document at p 183 of the Court Book is a certificate dated 11 November 2010 (and thus after the offending conduct) from an institution identified as “element k”, which certifies the successful completion by Dr Ogawa of a subject, “Emotional Intelligence (Includes Simulation). It forms part of a series of certificates from that institution and others which were given to the Minister. Materially, another certificate from “element k”, in its case dated 26 June 2010, certifies the successful completion by her of a subject, “Managing Conflict (Includes Simulation)” (Court Book, p 181). This certificate also is not expressly mentioned in the Minister’s reasons.

54    These two certificates formed part of “Attachment O” in the material before the Minister. They were identified to the Minister by his department by the description, “Academic Record and certificates of course completion received from Dr Ogawa by email on 20 February 2017 (21 certificates in total)”. That description was, with respect, unhelpful to the Minister as a way of alerting him to the relevance of the information in the two certificates. On that same date, and with reference to these certificates, Dr Ogawa sent a separate email to the Minister’s department (directed to the nominated officer in respect of her visa application and the possibility of its refusal) in which she stated, materially, “I will send you by a separate email 21 certificates of course completion as suggested by the personal circumstances form”. Dr Ogawa had earlier been sent by the Minister’s department a Form 80, “Personal particulars for assessment including character assessment”. “Part G – Education” of that form sought particulars of tertiary courses completed. Dr Ogawa’s submission of the 21 certificates, including the two which I have mentioned, was, as her email of 20 February 2017 quoted indicates, responsive to what she understood was required of her by the personal particulars form (Form 80). Given the title of the department’s Form 80, her giving of this material, including these two certificates, can have had no other purpose than they form part of the assessment of her visa application, including an assessment of her character.

55    As it is, what the Minister stated (at paragraph 26), in his reasons was, “I note Dr Ogawa has made no submissions in relation to her ability to manage future difficult situations, such as completion of courses in anger management.” But she had submitted – “given” - to the Minister information in the form of these two certificates which may have assisted him in relation to an issue, “ability to manage future difficult situations” which he quite reasonably and permissibly regarded as pertinent to his assessment of the risk Dr Ogawa presented to the Australian community.

56    The Minister also stated in respect of Dr Ogawa, at paragraph 43 of his reasons, “I acknowledge Dr Ogawa’s contribution to the community through academia and her educational pursuits.” In context, this is only a reference to her employment in academia here and to her general post-graduate studies here, not in particular to her completion of personal behavioural courses. Part of the educational attainment which she submitted to the Minister was completion, after the time of her offending conduct, of personal behavioural courses on the two certified subjects. The precise content of the subject “Emotional Intelligence” is not identified in the certificate given by Dr Ogawa to the Minister’s department. And the same may be said of the subject, “Managing Conflict”. But to make such an observation in respect of the certificates requires them expressly to be identified and considered. This I find by necessary inference flowing from the absence of explicit reference to them and reading those reasons as a whole, including the identified error in paragraph 26 of his reasons, the Minister did not do.

57    Attachment Z1 in the material before the Minister included Dr Whittington’s letter of 20 September 2017. The statements made by Dr Whittington in his letter of 20 September 2017 were brief but none the worse for that in terms of relevance to an assessment of risk. He stated:

I am a Consultant Psychiatrist currently working at the Southport Private Practice and before that at the Evandale Practice. I have consulted Dr Ogawa since December, 2013 during this time there has been no indication that Dr Ogawa is a risk to the community.

58    Once again, there is no express reference in the Minister’s statement of reasons to the view expressed in this letter. At paragraph 33 of his reasons, the Minister stated, “I have had regard to the submission and statements provided on her behalf by colleagues, friends and other members of the community, including prominent and well respected members of the Australian community.” But the content of Dr Whittington’s letter is not just a “statement by a member of the community”. It is a considered opinion by a specialist in a pertinent discipline in respect of the very consideration which the Minister properly regarded as relevant. Of course, that statement might be discounted on the basis of its generality and bare statement of a conclusion. But this, too, would require an explicit reference to and consideration of it. The more likely inference arising from the absence of reference to it and reading the reasons as a whole is that the Minister did not have regard to the information in Dr Whittington’s letter. I so find.

59    My conclusions that the Minister had regard neither to the emotional intelligence course completion certificate nor to the information in Dr Whittington’s letter are also reached by considering in conjunction the failure to refer to either of them, the failure to refer to the managing conflict course completion certificate and by reading the reasons as a whole, including the error made in paragraph 26 of those reasons. The Minister did state (at paragraph 34 of his reasons), that he found that the harm experienced by Dr Ogawa’s victims was significant and her assertion that her actions, “simply caused some people to be somewhat disturbed” is evident [sic – to be read as “evidence”] of her ongoing need for rehabilitation.” The latter part of that statement was, I find, made in ignorance of the contents of each of the certificates and of the opinion expressed by Dr Whittington. As Sackville J stated in Singh at [58] (and Dr Ogawa in consequence submitted):

The expression “have regard to” suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

60    It necessarily follows from the findings I have made that the conditions found in ss 54 and 55 of the Act were breached by the Minister in the making of his refusal decision. The information which he failed to consider was relevant. Having regard to the information might have made a difference to the outcome of the visa application. That is reason enough to quash the Minister’s decision.

61    Dr Ogawa submitted that there were other grounds upon which the decision should be quashed.

Ground 3 - The Respondent failed to accord with procedural fairness when considering the 'Expectations of the Australian Community'.

62    As developed in submissions, this ground put forward further particulars as to why it was that the requirement found in s 54 of the Act had been breached such that the Minister’s decision was attended with invalidity. The submission took as its starting point paragraphs 38 to 40 of the Minister’s reasons, which appear under the heading, “Expectations of the Australian Community”:

38.    I have considered Dr Ogawa's submissions in relation to the expectations of the Australian community and note the many comments made by others in relation to her treatment by the courts and the justice system.

39.    In making my decision I have been mindful that the Australian community would expect that non-citizens who commit serious crimes in Australia can and should have their visa refused.

40.    The Australian community expects that non-citizens obey Australian laws while in Australia. Dr Ogawa has breached this trust and has been convicted of offences in Australia, and I find it is appropriate to refuse the visa application of such a person.

63    Dr Ogawa submitted that a violation of s 54(1) was to be found in an absence of explicit reference in this part of the reasons to a document, “Approval of a Nominated Position as an Approved Appointment (Court Book p. 311) (approval document) and to the numerous letters of support from members of the Australian community for the grant to her of a permanent visa.

64    The subject, “expectations of the Australian community” was one formulated by the Minister for his consideration in the exercise of his discretion not, as is the subject of risk to the Australian community, made relevant to the exercise of that discretion by Parliament by necessary implication. Such is the breadth of language in the provision in s 501(1) for the exercise of the Ministerial visa refusal discretion it was certainly permissible for the Minister to formulate and then advert to the subject, “expectations of the Australian community”. Its precise boundaries were a matter for the Minister, limited only by the purpose for which the protective discretion was conferred.

65    Having regard to the statutory purpose of the discretionary refusal power, the various statements of support from community members for Dr Ogawa’s continued residence in Australia and in respect of her general character were relevant to its exercise but not determinative. The difficulty for Dr Ogawa in relation to this ground of challenge is that, reading his reasons fairly and as a whole, the Minister not only expressly identified the existence of these statements of support but also weighed them up in the overall context of deciding whether to refuse her visa application. In part he did this at paragraph 38 insofar as some supporting statements made reference to Dr Ogawa’s earlier experience of public administration and the justice system but he also adverted (at paragraph 33 of his reasons) to the statements in relation to his explicit assessment of risk. His statutory obligation was no more and no less than to “have regard” to relevant information given to him by Dr Ogawa in the exercise of his discretion. His reasons show that he did this. Once this conclusion is reached, that the Minister might, in relation to his permissibly self-identified criterion of “expectations of the Australian community”, have made more detailed reference to the contents of the numerous letters of support given to him by Dr Ogawa and identified in her submission is nothing to the point. To find jurisdictional error in an absence of such reference under this heading would add to the vice of narrowly reading Ministerial reasons the even greater vice of descending into the merits of a value judgment consigned by Parliament to him, not to the judiciary.

66    The approval document evidences approval by a delegate of the Minister of an application by Southern Cross University for a particular university position to be filled by Dr Ogawa as its nominee under a regional sponsored migration scheme. At paragraph 23 of his reasons, the Minister stated:

I have taken into consideration that Dr Ogawa has applied for a Partner (Temporary) (Class UK) visa, for the purposes of remaining in Australia with her partner and also for continuing employment. I have considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application.

67    Given that, if granted the visa for which she applied, it would be permissible for Dr Ogawa to engage in employment in Australia, it may be accepted that information as to her proposed, future employment was, in the circumstances, relevant and that the Minister was obliged to have regard to it. The Minister did not, in terms, refer to the approval document but it is implicit in the reference in paragraph 23 of his reasons to “continuing employment” that he “had regard to” the fact that Dr Ogawa proposed to undertake employment. The type of employment was doubtless also relevant to risk but, here, too, the overt reference to “continuing employment” shows that all aspects of the application were considered against this background. The Minister was not obliged to do any more than this in order to “have regard” to this particular information.

68    For these reasons, there is no merit in ground 3.

Ground 4 - The Respondent failed to accord with procedural fairness when considering the length of time during which the Applicant has made a positive contribution to Australia.

69    As developed in submissions, this ground also, in part, alleged a further breach by the Minister of s 54 of the Act in the making of his decision. Dr Ogawa submitted that the Minister's acknowledgement in paragraph 43 of his reasons of her contribution to the community was “limited solely to her academic and educational pursuits” and “[did] not include her contribution to the tourism and export industry in general through her exposure to the Japanese mass media”. She referred to documents given to the Minister by her which contained information on these subjects.

70    A difficulty for Dr Ogawa in relation to this part of her development of ground 4 is that the subject of contribution to the Australian community, however long, though permissibly introduced by the Minister as one for his consideration, is not mandated, either expressly or by implication, by the Act as a subject which must be considered by him. Rather, such is the generality of language employed in the conferral of the power to refuse to grant a visa to a person it admits of this subject being lawfully introduced voluntarily by the Minister. The precise limits of the subject are a matter for the Minister. He was entitled to regard academic and educational pursuits as a contribution to the community. His obligation to “have regard” to the information given to him by Dr Ogawa did not require him overtly to advert to and consider every type of employment followed by Dr Ogawa since her arrival in Australia, much less to consider whether each such employment constituted a contribution to the community. Put another way and having regard to the observations of Sackville J in Singh, referred to above, this was not a “fundamental element”.

71    To this extent, ground 4 as developed in submissions has no merit. No breach of s 54 of the Act on this additional basis is disclosed.

72    Unrelated to this aspect of Dr Ogawa’s ground 4 submissions was a submission that the Minister had breached s 57 of the Act by failing to give to her a copy of the “Immigration History”, being a summary of the various visas granted to her and related decisions concerning the same on and from the initial grant of a visa to her for the purpose of entering Australia. That section provides:

57.     Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or part of the reason:

(i)    for refusing to grant a visa; or

(ii)    for deciding that the applicant is an excluded fast track review applicant; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

Note:    Excluded fast track review applicant is defined in subsection 5(1).

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    iinvite the applicant to comment on it.    

73    Dr Ogawa submitted that the immigration history contained false or misleading information and that, in compliance with s 57 of the Act, it ought to have been put to her so as to give her an opportunity to comment on it. In particular, at paragraph 49 of her supplementary written submissions, she submitted:

The Applicant lost her student visa in 2003 as a result of the Department's error which resulted in her arbitrary detention in 2006. This resulted in the Applicant accumulating a large Commonwealth debt which prevented the Applicant from obtaining another student visa ; a skilled migration visa (a permanent visa) in 2007; and a regional sponsored migration visa (a permanent visa) in 2008 . Had the Department not erroneously cancelled the Applicant's student visa in 2003, the Applicant would have become a permanent resident in 2007 as a skilled independent migrant or 2008 as a regional sponsored migrant and an Australian citizen in 2008 or 2009.

[Footnotes omitted]

74    As was observed of s 57 of the Act in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 261 [20], certain of the requirements found in s 57(1) and (2) are similar to those arising under the general law. Under the general law and in respect of information sourced from other than the affected person, procedural fairness may dictate that a decision-maker bring to the attention of the affected person the critical information upon which a decision is likely to turn: Kioa v West (1985) 159 CLR 550 at 587.

75    The requirements found in s 57 in respect of “relevant information” as defined are materially engaged only if the Minister considers that the information “would be the reason, or part of the reason ... for refusing to grant a visa”. One difficulty with Dr Ogawa’s submission is that there is nothing to show that the Minister ever considered that anything in the immigration history would provide such a reason or part of such a reason for refusing Dr Ogawa’s visa application. Given this, the requirements of s 57 were not engaged. Even under the general law those requirements would not have been engaged by the bare recitation of Dr Ogawa’s immigration history.

76    It was always open to Dr Ogawa to highlight to the Minister by submission, prior to the making of his decision, the practical consequences for her of the initial, flawed decision to cancel her student visa. The factual premises upon which paragraph 49 of her supplementary written submissions (quoted above) are based were known to her at that time. Though the subject is mentioned in her Petition to the Governor-General, that she did not, in her submission to the Minister, do so to an extent which she might otherwise have done, had she been reminded of the detail of her immigration history by prior service of a summary of it on her, does not mean that s 57 was breached by a failure to provide her with an opportunity to comment upon that history, any more than it means that there would have been, were it applicable, a breach of a common law duty to afford procedural fairness by the extension of a prior opportunity to be heard. As it happens, she was afforded such an opportunity. What she made of it in terms of her immigration history was a matter for her.

77    The language of s 57 of the Act is analogous to that found in s 424A of the Act. As to the latter, it has been that the term “information” does not extend to “subjective appraisals, thought processes or determinations”: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 [18]. The same conclusion must follow by analogy in relation to s 57 of the Act. So a failure to disclose these to a visa applicant, prior to the making of a decision under s 501(1) of the Act, does not constitute a breach of s 57 and, with that, a jurisdictional error. That does not mean that the Minister’s subsequent “subjective appraisals, thought processes or determinations”, or lack thereof, having regard to his statement of reasons, may not be productive of separate jurisdictional error. As Dr Ogawa’s oral submissions touching on her prior immigration history progressed, it emerged that her particular complaint was that, had the ramifications of that history after her offending conduct been taken into account, the Minister would necessarily have to have concluded that it was unreasonable to refuse her the visa for which she had applied. The merits of that submission are best considered in relation to her unreasonableness ground of challenge. As to ground 4, the conclusion must be that it is without merit.

78    Ground 5 - The decision is legally unreasonable.

79    As developed in Dr Ogawa’s submissions, there were a number of separate bases upon which she submitted that the Minister’s decision was unreasonable.

80    One basis of submission was that the Minister had failed to consider the legal consequence of making a refusal decision at a time when a petition to His Excellency the Governor-General for a pardon in respect of the offences which she had committed was pending. Another basis was that it was unreasonable, given that the petition was pending, to determine the visa application. Yet another basis was that, having regard to the various visas which she had been granted in the period of about 11 years which had elapsed between her original offending conduct and the date when the Minister made his decision and to the ability of the Minister under s 501 to refuse or cancel visas on character grounds, it was inconsistent and inexplicable and thus unreasonable for the Minister now to refuse to grant her a visa on character grounds.

81    As to the first basis and at a general level of abstraction, it was common ground that the Minister was obliged to consider the legal consequences of the making of a refusal decision. In this the parties were not mistaken: Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 at [46] (in relation to the refusal of a protection visa, but the same must follow in relation to the refusal of the visa sought by Dr Ogawa). The Minister expressly adverted (at paragraph 2 of his reasons) to the consequence, already described, visited by s 501F of the Act on Dr Ogawa by his refusal decision and, related to that, that she no longer held any valid visa. It is also patent from the Minister’s reasons that he was well aware that a further consequence of his refusal decision would be Dr Ogawa’s deportation. Dr Ogawa’s contention was that the Minister was additionally required to consider the legal effect which her removal from Australia would have were she to be granted a pardon.

82    As an initial observation, a failure to consider the legal consequence of the refusal of a visa would be to commit the jurisdictional error of failing to take into account a relevant consideration. It is a failure to give “adequate weight to a relevant factor of great importance” which is better characterised as the jurisdictional error of unreasonableness: Peko-Wallsend, at 41. But that is not the case advanced by Dr Ogawa. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] it was observed that, “The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness.” That observation offers some support for Dr Ogawa’s characterisation of this basis of her ground 5 but, in the end, it is not necessary further to consider the subject of characterisation. That is because, quite properly, the Minister did not quibble with the way in which Dr Ogawa had characterised the asserted error but rather with whether it was ever relevant for the Minister to take the consideration asserted by her into account.

83    Further consideration of the first basis requires that s 501(10) of the Act be set out:

(10)    For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)    the conviction concerned has been quashed or otherwise nullified; or

(b)    both:

(i)    the person has been pardoned in relation to the conviction concerned; and

(ii)    the effect of that pardon is that the person is taken never to have been convicted of the offence.

84    The text of s 501(10) of the Act makes explicit that it is not just the fact of the granting of a pardon but its legal effect which yields the result that a particular sentence is to be disregarded.

85    In identifying in s 501(10)(b) of the Act, a particular type of pardon, it seems to me that Parliament had in mind the type of pardon which s 85ZR of the Crimes Act 1914 (Cth) terms a “free and absolute pardon”. Another term used for such a pardon is “free pardon”. In Reg. v. Foster [1985] Q.B. 115, 130 Watkins LJ observed of such a pardon, “the effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, ‘all pains penalties and punishments whatsoever that from the said conviction may ensue,’ but not to eliminate the conviction itself.” A later judgment of a Queen’s Bench Divisional Court, in which Watkins LJ delivered the judgement of the court, R v Secretary of State for the Home Department ex p. Bentley [1994] QB 349 (Bentley) contains an illuminating account of the history of the Royal Prerogative of mercy, which includes, but is not limited to, the power to grant such a pardon. Nor is the power limited in its exercise to cases where a person is morally and technically innocent. Pardons may take a more limited form and be conditional, as, for example, where a convicted person is relieved from the penalty imposed on condition that he or she undergo some lesser penalty. Further, the fact that the sentence imposed after conviction has been carried into effect or served in full does not mean that either a free or conditional pardon cannot be granted. As was observed in Bentley at 365, “The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case.” In Australia, that power is exercisable by the Governor-General in respect of federal offences and by a State Governor in respect of offences against the laws of the State concerned, in each instance as the local representative of Her Majesty the Queen.

86     That there is such a bifurcation provokes an interesting question which it is presently unnecessary to resolve. In respect of the offences against the Commonwealth Code, Dr Ogawa’s petition is undoubtedly correctly directed to the Governor-General. The contempt conviction was in respect of an offence against a State Act. At first blush, that might suggest that the exercise of the prerogative in respect of that offence is one for the Queensland Governor but the District Court was, at all material times, exercising federal jurisdiction, because it was dealing with offences against the Commonwealth Code: 68(2), Judiciary Act. Thus the contempt was of a court exercising the judicial power of the Commonwealth. Though it is not necessary finally to resolve the question, that would suggest that all aspects of any exercise of the prerogative power in relation to Dr Ogawa are for the Governor-General if so advised.

87    The Minister’s reasons evidence that he did advert both to the existence of a petition for a pardon and to the fact that the application had yet to be determined (paragraphs 8 and 10): At paragraph 10 of his reasons, the Minister started:

While I acknowledge that a Petition for a Pardon was made to the Governor-General of Australia in 2014, at present there is no evidence that … an appeal of Dr Ogawa’s convictions [is] underway or that such an appeal, or a pardon, is likely.

88    In context, the Minister’s reference in this paragraph to “such an appeal” appears to me to have been intended to be a reference by the Attorney with his subsequent reference to “likely” then to be regarded as a finding that there is no evidence that it is likely that a reference appeal would be made or that a pardon would be granted.

89    The Minister’s reference both to an appeal and to a pardon is apt. As I explained in Martens v Commonwealth of Australia (2009) 174 FCR 114 and as was accepted by the majority of the Court of Appeal in the latter, consequential reference to that court, R v. Martens (No 2) [2011] 1 Qd R 575, s 68 of the Judiciary Act 1903 (Cth) has an ambulatory effect, operating by analogy to pick up and to apply, mutatis mutandis, to Commonwealth offences committed in Queensland s 672A of the Criminal Code (Qld). Such an operation was later described by the Full Court as at first blush “curious” : Nudd v Minister for Home Affairs (2011) 122 ALD 529 at [10] but it was unnecessary for the Full Court further to consider the issue as the appeal proceeded on the assumption that s 68 of the Judiciary Act did indeed have such an operation. As in that case, that s 68 of the Judiciary Act operated so as to pick up s 672A of the Criminal Code was assumed by the parties in this case. It is not therefore necessary to give the point any detailed consideration. I do no more than observe that such an operation seems to me a necessary consequence of the reasoning of Dixon J in Williams v The King [No. 2] (1934) 50 CLR 551, as taken up by the majority in Peel v The Queen (1971) 125 CLR 447, a view shared by Chesterman JA (and, albeit with some hesitation, by Muir JA) in R v Martens (No 2). In R v Martens (No 2), at [84] – [85], Chesterman JA (Muir JA agreeing) characterised the hearing of a reference under s 672A of the Criminal Code as an appeal. No issue was made by the parties in the present case as to the correctness of that characterisation. It serves to explain why the Minister’s reference to an appeal in his reasons was apt.

90    Were there to be an Attorney-General’s reference under s 672A of the Criminal Code, as applied by s 68 of the Judiciary Act, one result of the resultant appeal might be that the convictions concerned were quashed (as, for example, occurred in R v Martens (No 2)). In that event, s 501(10)(a) of the Act would be applicable. That outcome would, for reasons already given, be in contrast to the outcome were a free pardon granted.

91    The Minister’s reference to the lodgement of a petition in 2014 is factually correct. A petition was first lodged during the tenure in office of the previous Governor-General and renewed afresh and in like terms during the present Vice-Regal incumbency. The Minister’s reference to the present Governor-General in his statement of reasons attests to his awareness of this position.

92    Each petition is primarily directed to the subject of Dr Ogawa’s conviction in respect of the Commonwealth Code offences but a reference to the Court of Appeal in respect of her conviction and sentence in respect of both those offences and the contempt of court offence is sought. The submissions made in the current petition in relation to Dr Ogawa’s conviction in respect of the Commonwealth Code offences, which take up those made in the earlier petition, are detailed and forensically sophisticated. Neither petition is but a bare request for a pardon or a reference appeal. As to clemency, each contains a detailed submission, proceeding from the initial flawed departmental decision in 2003 to cancel Dr Ogawa’s student visa and a victory on merits review in 2004 rendered pyrrhic by a failure on the part of the then Migration Review Tribunal to hand down its decision prior to the expiry of the visa the decision in respect of which was the subject of the review. As to the seeking of a reference appeal, each petition contains a scholarly rationale for why it is submitted that the Commonwealth Code offence convictions should be quashed. The petitions themselves therefore contain evidence by reference to which a likelihood that they might receive favourable consideration, if only to the extent of persuading the Commonwealth Attorney-General that there ought to be a reference, might be measured. Neither petition is hardly frivolous.

93    However this may be, the precise point presently at issue concerns an alleged failure to consider, as a further legal consequence of the refusal of the visa sought, its effect on Dr Ogawa’s petition and, were a pardon to be granted or a reference appeal to succeed in the quashing of convictions, on her ability to obtain a visa enabling her to return to Australia.

94    As to this point, the Minister’s submissions should be accepted. Neither the refusal decision itself nor subsequent, consequential deportation would preclude the Commonwealth Attorney-General from referring the current petition to the Queensland Court of Appeal, nor on such a reference appeal preclude that court from quashing her convictions, nor preclude His Excellency the Governor-General, on the advice of the Federal Executive Council, from granting Dr Ogawa a pardon. Further and as the Minister also submitted, in the event that the Commonwealth Code convictions were quashed or a pardon having the effect described in s 510(10)(b) granted, the effect of s 48 of the Act and reg 2.12 of the Migration Regulations 1994 (Cth) is that Dr Ogawa could again apply for a partner visa of the kind which the Minister has refused.

95    For these reasons, there is no substance in the first basis upon which Dr Ogawa cast her “unreasonableness” submission.

96    One of the submissions made to the Minister by Dr Ogawa before he made his refusal decision was, “in light of s 501(10) [of the Act], it is premature to decide that the Visa Applicant does not pass the character test prior to the final disposition of the petition submitted by the Visa Applicant”: submission of 8 April 2017, paragraph 6 (Court Book, p 169).

97    I accept the Minister’s submission that it is implicit in paragraph 10 (already quoted) of his reasons that he considered the possibility of deferring the making of his decision because of the pendency of the petition and determined not to do so for the reasons set out in that paragraph.

98    The difficulty about those reasons is that they do not engage at all with the contents of the current petition in circumstances where that petition itself, for reasons already given, contains evidence by reference to which likelihood of success might be measured. Under the Administrative Arrangements, the Minister had no portfolio responsibility for the consideration of the petition. Administration of s 68 of the Judiciary Act was consigned to the Attorney-General. The Minister was explicitly informed by his department in the submission made to him (paragraph 49, Court Book, p 8) that there had been neither internal nor external consultation in relation to the visa application. Inferentially, neither the Attorney-General nor any officer of the latter’s department was consulted by an officer of the Minister’s department. The Minister’s reasons do not evidence that he did this personally before making his decision. There is no other evidence that there was any such consultation either by the Minister personally or an officer of his department prior to the making of his refusal decision.

99    The Minister’s reasons do not disclose any analysis by him of the submissions made in the petition which would warrant any conclusion as to the likelihood that, either a reference would be made at all, or by reference appeal outcome or pardon, at least the Commonwealth Code offences might have to be disregarded. No such analysis was offered to him by his department. Yet Dr Ogawa’s submission of 8 April 2017 could only reasonably be read as a submission that the merits of her petition were such that the Minister should defer the making of his decision. As I have observed, the petition was hardly frivolous. Of course, as the Minister submitted, he was obliged to determine the visa application by reference to prevailing circumstances. But Dr Ogawa’s request was that this should be done at a time when one of those prevailing circumstances was the known disposition of her petition. In the particular circumstances, it was unreasonable for the Minister to have proceeded to refuse her deferral request and to make his decision without any basis for his assessment of its likelihood of persuading the Attorney-General to make a reference. Even if, in light of the particular content of the petition’s submissions, only the Commonwealth Code offences were quashed or the subject of a relevant pardon, the effect of s 501(10) of the Act would be that the sentence in respect of those offences would have to be disregarded. In that circumstance, the remaining contempt sentence could not, by definition, yield satisfaction that Dr Ogawa had a “substantial criminal record”.

100    The Minister’s submission that there was not, at the time of the decision, either a relevant pardon or any quashed conviction such that any sentence for any offence had to be disregarded is correct but it begs the question as to whether to make the decision in October 2017 or, as requested, defer it was unreasonable. The refusal was, in the circumstances of an unreasonable decline of a deferral request, a decision which was unreasonable in outcome, which is one of the two ways in which the jurisdictional error of unreasonableness can be found: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [6]-[9] per Allsop CJ, [6l(c)] per Griffiths J and [91]-[92] per Wigney J. In outcome and because it entailed an unreasonable refusal of a deferral request, the Minister’s decision was “unreasonable or plainly unjust”: Minister for Immigration and Citizenship v Li at [76].

101    For this reason also, the Minister’s decision should be quashed.

102    As developed in her submissions, the further basis upon which Dr Ogawa submitted that the Minister’s decision was unreasonable was that it was inconsistent with an earlier pattern of granting her visas which might have been refused on character grounds. That was not, in terms, a submission put by her to the Minister prior to the making of his decision. Materially, her submission was put at a more general level of abstraction, which was that, in the eight years which had passed following her 2009 convictions, her behaviour was unblemished. That behaviour occurred in Australia and occurred when she was subject to various visas but Dr Ogawa did not by submission put to the Minister that some or all of these could have been refused on character grounds. Neither did Dr Ogawa, in terms, put to the Minister that a decision made personally by a predecessor in office in 2007 might, even though she had not at that stage been convicted of any offence, have been refused on character grounds on the basis of administrative findings as to her conduct in 2006.

103    In Peko-Wallsend, at 45, Mason J observed:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

104    The presence of the immigration history evidences that the Minister had at least constructive knowledge of the various visas granted to Dr Ogawa. Further, as Dr Ogawa correctly submitted, and subject to the qualification that s 65 is “satisfaction” based, whatever might be particularly made a criterion for consideration in relation to a particular visa by the Migration Regulations, under “s 65(1)(a)(iii) of the Migration Act 1958, the character test under s 501 is a requirement for all visas”. But the analysis or lack thereof in the department’s submission to the Minister and in his reasons in respect of the immigration history of the consistency or otherwise of a refusal on character grounds of the partner visa for which Dr Ogawa had applied was reactive to the submissions which she had made to the Minister.

105    In light of the conclusions which I have already reached as to the presence of jurisdictional error, the Minister’s decision will have to be quashed in any event. It will then fall to the Minister either to make a fresh decision personally or to consign that task to a delegate. In either event, given the particular submission made by Dr Ogawa in this proceeding, the question of consistency with earlier character and risk assessments will be at large in relation to the making of a fresh decision in a way in which it was not overtly when the Minister made his decision in October 2017. In these circumstances, it seems to me preferable that the subject first (and perhaps last) be considered administratively rather than that there be some judicial pronouncement at this stage on the subject of any unreasonableness on this basis. That is not to say that I do not accept that unreasonableness may not be found in inconsistency in administrative decision-making, only that I consider it inappropriate in the present circumstances to make a judicial pronouncement in respect of what is, for the reasons given, an academic question.

Conclusion

106    For these reasons, the Minister’s decision must be quashed. It necessary follows that there is no basis for Dr Ogawa’s continued immigration detention.

107    The Minister’s reasons also disclose he formed views as to the possibility of Dr Ogawa’s reoffending, what those effects might be and countervailing considerations arising from Dr Ogawa’s post-conviction conduct and testaments as to her character. As I observed at the outset, subject to legality, the making of value judgements under s 501(1) as to whether or not to refuse to grant a visa for which a person has applied is for the Minister, not the judiciary. In that role Parliament has given the Minister a large “zone of discretion”. Within that zone, it is nothing to the point that in outcome the Minister’s decision might to some appear harsh. Submissions as to miscarriage of justice aside, there is certainly an eloquent case for a conclusion of harshness advanced in Dr Ogawa’s petition but in the context of a visa application decision, whether to reach such a conclusion is one for Ministerial value judgement, not that of the Court. In the context of whether or not to grant a pardon, the conclusion is one for the value judgement of the Governor-General on the advice of the Federal Executive Council not, again, the Court.

108    In his reasons (at paragraph 28) and in respect of Dr Ogawa’s offending conduct against the Commonwealth Code, the Minister has expressed agreement with the sentiment voiced by the sentencing judge, which was that the conduct was “unforgivable”. Viewed as a colourful way of emphasising the seriousness of offending conduct, the adoption of that description is unremarkable. Evaluation of the seriousness of offending conduct for the purpose of the exercise of his discretion under s 501(1) is, subject to questions of legality, one for the Minister alone. However, the adoption of such a description is, with respect, unfortunate in relation to a person who has an unresolved petition for a pardon. That is because, as regard to the history of the prerogative in Bentley discloses, the granting of a pardon can evidence forgiveness and may be granted even when there is no acceptance that a person is technically or morally innocent. The formulation of advice in relation to the granting of a petition is for the Attorney-General, not for the Minister.

109    To quash the Minister’s decision on the basis of the jurisdictional errors identified above says nothing about what ought to be concluded on the merits of either the visa application or the petition.

110    There will be orders accordingly.

Associate:

Dated:    9 February 2018